Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-12-17
NOT NAVIGABLE.
THE CASE OF CARDWELL VERSUS
SACRAMENTO COUNTY.
Judge Armstrong Decides that the
American River May be Bridged =
Without a Draw.

q, al which suit as brought TO restrain
the Supervisors from having bridge con-
structed across the American river at
Twelfth street, on the north side of the
civ. unless draw was provided therein to
permit vessels to pass and repass. This
action is based upon the claim that the
American river is navigable water-course,
and as such navigation cannot be OBJ
structed by building the bridge as contem-
plated under the plans adopted by the
Supervisors. Judge Armstrong decides
that the river is not navigable " stream,
and hence the prayer for restraining order
is refused. The decision in full is as fol-
lows:
In the Superior Court of the county of Sacra-
nento state of California-John T. Cardwell,
plaintiff, VS.. The County of SACRAMENTO, the
california Bridge Company and Alfred W.
Rurrell deiendants-This is a suit in equity to
restrain the defendants from constructing q
bridge without draw OF opening in it across
the American river, about one mile above its
junction with the Sacramento river. 1t is
averred in the complaint that during the winter
and spring months of the year the American
river is navgable from its junction with the
Sacramento river to a point above the land of
the plaintiff and that plaintiff by the use of
the commodities produced ana existing on his
land down the American river to the Sacra-
neDto river, and thence to market. And 1t is
ayerrcd that the county OF sacramento has en-
tered into q contract with the other defendants
to construct q bridge across the American river,
about mile above its junction with the Sacra-
mento river, and that the contract does not pro-
vide for any draw opening il the bridge to
permit the passage OF vessels.
The defendants interposed demurrers to the
complaint on the ground that 1t does not state
facts sufficient to constitute cause of action or
any relief The question rs to whether the CON-
plant states facts sufficient to constitute cause
of action depends upon the nayigability
or non.nayigability OF the American river
within the meaning of the legislation upon the
subject in this state. (CaIdwell vs. American
Bridge Company, lib U. ). Rep, 205.) If the
American river is a navigable stream within the
intent of the Legislature as expressed in the
several Acts in relation to the navigable streams
in the State, the Court will take Judicial notice
OF that fact and If 1t is not navlgable within the
meaning of those Acts, the Court takes judicial
notice Of that tact. &C. c. p. 1875. Brumagim VS..
Bradshaw, 80 Cal, "a People VS.. Chez Kee, 81
Cal, 4O4; Clarke VS.. Fitch, Il Cal, Az: Baker
VS. Hope 40 Cal, 59S) Whatever the Court takes
judicial knowledge of need not be averred in
any pleading, and if pleading contain an
averment of some matter as a fact, of which the
Court has judicial knowledge is not fact, the
aYerment must be disregarded. STORY Ed Pl.
ga, Moakes Van Santvoord's Pl. 22S-254). The
history of the legislation in this State to the
navigability OF the American river commences
March 20, 1850. On that day the Legislature
passed an Act which declared, among other
streams the American river navigable between
its mouth and the mill dam built by Captain
Suffer- about nine miles above the mouth of the
river Stat. 1850, p. 1907 On the 18th day of
February. 1851, that Act was repealed and an
other Act passed upon the same subject This
Act disclosed that river navigable between its
mouth and the town of Brighton. point
lower down the river than was established by
the former Act (Stat. 1851, p. 1927 And this
Act was amended in 1858 so as to declare this
river navigable between its mouth and point
still lower down the river known as the Lower
Ford" Comp laws, p. 9l6) The Act of 1851
was amended again III 1894, but not so as to
change the law to the navigability of the
American river the amendment only relating
to other streams. These Acts by necessary i'm
plication declared that river not naYigable above
the Lower Ford" american River Water
Company VS.. Amsden, 6 Cal, 443) That ford
was about one mile above the mouth of the
river, and at point on the river below where
the bridge in question is TO be constructed. But
in 1860 the Act of 1851, as amended in 1854, was
again amended, and the American river, tor the
first time, was omitted entirely from the enum-
Grafton of navigable streams. Stat. 1850. p. l6S
And the Act was again amended IN 1861, by in
Guiding in the category OF nayigable streams
." Big river, three miles from its mouth and
Noyo river, three miles from its mouth and Al
bion river, three miles from its mouth -
but still emitting the American river
from the enumeration OF the naYigable
rivers or streams 1t was the first section
of the Act of 1851 which was amended each
time, and the section was re-enacted each time
with the changes intended by the Legislature.
In the case of Billings vs.. Harvey Is Cal, 3Sl)
the Supreme Court said: The re-enactment tof
the section) creates anew the rule of action.
and even if there was not the slightest differ
ence in the phraSeoOgy of the two, the later
alone can be referred TO as the law, and the
former stands to all lntentS as II absolutely and
expressly repealed And as there was no other
Act than the first section of the Act of 1851 as
amended from time to time, declaring the
American river navgable, under this rule.all
the Acts declaring it to be navigable must be
held to have been repealed by the Act of 1S6l-
and by implication the river declared not naVi-
gable. Thus the law stood when the Codes were
adopted. Title VI, Chapter l., Article /. of Part
III. of the Political Code, defines public waters
which in the sense of the Code are navigable
tanned in Section 23iS, as construed in con-
nection with Section 23i9 Section 23IS
reads e Navigable waters and all streams
of sufficient capacity to transport the
products of the country are public ways for
the purposes of navigation and such transpOr-
tation." II is claimed by the plaintiff that this
section, by construction, declares the American
river to be nayigable stream or public way,
which means the same thing u navigable
stream but in view of the law as it existed Mt
the time the code was adopted, it docs not neces-
sarily follow that the American river is in the
category of public water ways. There had been
and were at that time great confusion and con
tiet in the decisions of the Courts as to what
streams were under the ban OF the law and pro-
tected as navigabe streams In England from
which country we have derived the fundamental
principles of our laws, by the common law no
way above the point where the tide ebbed and
flowed; but the principles of the common law
of America, as modified and nodded to suit the
social, political and geographical condition OF
the country, protected all the streams in which
the tide ebbed and Jwed, not only as far as the
ebb and flow of the tide, but as far as such
streams had Sufficient capacity to transport
the products of the country and the same
principle of the common law was extended to
such fresh water streams as the Missouri river,
the Ohio river and other large streams; but in
the State of Maine and some other States
the doctrine of the common law had been
carried to the unreasonable extent of pro-
tecting streams as nayigable waters which
had capacity only of floating logs or wood dur
ing seasons of high waters. The Legislature in
tended by this section to exclude this class of
streams from the category of navigable streams
or public ways, except all streams and sloughs
emptying into Elk river and other streams in
Humboldt county, as indicated by Section 2S49
of the Political Code. The streams designated
in the English common law as "nayigable
waters and those of sufficient capacity to trans
port the products of the country" denominated
in the American common law as nayigable
Streams. are both designated in Section 2S4S as
public ways and Section 2S49 enumerates
the streams and waters which are declared to
be public ways" and the American river is
not contained in, but is omitted from the emu.
meration.
The omission of the American river from
he enumeration of public ways is Gecldr
alton by necessary implication that It islo pubic
lcdy. This is so upon the prindAle Of the
familiar maxim applied in the. cong tuction OF
expression or enumeration of enc thing is the
exclusion of all Others. Peoples Us. Jewett Cal
29l: Smith VS.. Randall, Cal, AZ: Smith VS.
Eureka Flour Mills, Cal, G; Csulfeld VS..
Tobias, 81 Cal, $40; People jackson, p Cal,
$50: Boyce VS.. California Stage Company, IS
Cal, 475; Perry VS.. Ames, Dc Cal, SIS; Bour-
land VS.. Heldreth. % Cal, 22l; Harper VS.. Minor,
2 Cal, ll3.) In Perry vs. Ames, the Court said
that "elpr6Ssio ANUS est erclU-io eIti8iuS is q
maxim of general application in the constIuc-
ton of statutes Section 23i9 is re-enaet-
ment of the amendment of 1861 toshe Act of
1851 in its exact words, but it adds to che cate
CORY of public ways san Antonio czaek ard
other streams, eupmerating them by name, but
q tadust1d emitting the American river as was
Done IN the amendments OF 1860 and 1861 to the
Act of 1871, and in addition to the enumeration
oi the streams by name, Section 1919 contains
TINS clause; "All the streams and Soughs
emptying into Elk river. and all streams and
sloughs south of Eureka, in Humboldt eol-nty
which are R0tc or al any time have been
USED Tor the purpose of floating logs of timber:
ana ell the sloughS south Of Humboldt poiut in
said county, that at high water have dep.h
OF Two feet OF water, and wide enough to fiost
ana ADMIT boat carrying five tons or more
freight, are declared naYigable II follows
according 10 the rule for the CONSTRUCTION q:
statutes which we have invoked that This is hy.
implication a declaration by the Tepislaf1,re
that The class OF streams described in that cIasa
IN all other parts of the State than HumboI5t
county. are not public ways ana that ali the
streams in the State which are 10 he dper,ad
and protected as public ways are those enumer-
ated IN Section 25i9, either by name or the ne
SSrptiou contained in the piauS.a or70tad -